Opinion by Consumer Advocate Tim Bolen
A hearing will begin in Maryland in front of an Administrative Law Judge (ALJ) tomorrow morning (June 17th, 2011) to determine whether, or not, the Maryland Board of Physicians had justifiable cause to immediately suspend Mark Geier MD’s medical license. The hearing could last up to a week before all of the world-class Geier witnesses could be heard.
But, in essence, what is really happening here is that the State of Maryland has a structure in place for this sort of situation – sort of a check and balance system. The legal question to be adjudicated at this hearing is NOT whether or not Mark Geier MD did anything wrong in his medical practice, but whether the Maryland Board of Physicians followed “due process,” in yanking his license in this “emergency” manner.
And, the Maryland Board of Physicians is stumbling big time.
Why? The Maryland Board of Physicians, in the Mark Geier MD case, activated an emergency provision of Maryland law under (COMAR) 10.32.02, called “Summary Suspension.”
The “Summary Suspension” section of this law outlines the process by which such an action can be taken. Specifically, the Maryland Board of Physicians activated the “Extraordinary Circumstances” subsection (COMAR) 10.32.02.05 (B) (7) (a) (b), and (c) which says:
(7) A show cause notice may not be required in extraordinary circumstances. The Board, after consultation with the Board’s counsel, may suspend a license, registration, or certification without prior notice and opportunity to be heard, if:
(a) The Board determines that the health, welfare, and safety of the public or the physician imperatively requires immediate suspension;
(b) Notice and opportunity to be heard before the action is not feasible; and
(c) The respondent is provided with a postdeprivation opportunity to be heard by the Board within 15 days.
Starting tomorrow morning, the Maryland Board of Physicians has the burden of proof to show several things tomorrow, to the ALJ. First, the Board must outline the “Extraordinary Circumstances.”
Then the board needs show to all of the reasons why “(a) The Board determines that the health, welfare, and safety of the public or the physician imperatively requires immediate suspension;”
And then the Board needs show to all of the reasons why “(b) Notice and opportunity to be heard before the action is not feasible;”
Maryland law is very specific about the use of this (COMAR) 10.32.02.05 (B) (7) (a) (b), and (c) emergency provision. Maryland law, like all other States, is set up to protect the people while, at the same time, establishing a system of “due process,” required by the US Constitution Amendments number Five and Fourteen, as explained below.
Tomorrow morning begins, frankly, the unraveling of the scheme against the Geiers, and the beginning of the consequences for the Maryland Board of Physicians employees, agents, and co-conspirators. Why? Because the Administrative Law Judge (ALJ) is NOT part of the Maryland Board, nor an employee under the control of Joshua F. Scharfstein the head of the Maryland Department of Health and Mental Hygiene. From the law, here is what will happen:
(2) After a full evidentiary hearing, the administrative law judge shall provide the Board with proposed findings of fact and conclusions of law and proposed disposition. The administrative prosecutor and respondent may file exceptions in accordance with Regulation .03F of this chapter. After the Board issues its final order, the respondent may appeal this decision in accordance with Regulation .03H of this chapter.
As the Maryland Board has discovered in earlier cases, if the ALJ says they don’t have a case, any decision contravening that gets them personally sued in State or Federal Court under the “due process” provisions – and case law shows the courts favor the Plaintiff. Better, violations of “due process” generally REMOVE the immunity provisions for public employees, letting the Plaintiff go after those Board Members’, or State employees’, personal assets.
DUE PROCESS – A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one’s life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, ARBITRARY, or capricious.
The constitutional guarantee of due process of law, found in the Fifth and Fourteenth Amendments to the U.S. Constitution, prohibits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property. The DUE PROCESS CLAUSE of the FIFTH AMENDMENT, ratified in 1791, asserts that no person shall “be deprived of life, liberty, or property, without due process of law.” This amendment restricts the powers of the federal government and applies only to actions by it. The Due Process Clause of the FOURTEENTH AMENDMENT, ratified in 1868, declares,”[N]or shall any State deprive any person of life, liberty, or property, without due process of law” (§ 1). This clause limits the powers of the states, rather than those of the federal government.
The Due Process Clause of the Fourteenth Amendment has also been interpreted by the U.S. Supreme Court in the twentieth century to incorporate protections of the BILL OF RIGHTS, so that those protections apply to the states as well as to the federal government. Thus, the Due Process Clause serves as the means whereby the Bill of Rights has become binding on state governments as well as on the federal government.
Read more: Due Process of Law – Substantive Due Process, Procedural Due Process, Further Readings – Constitutional, Rights, Clause, Government, Property, and Liberty http://law.jrank.org/pages/6315/Due-Process-Law.html#ixzz1PMjo3ZBV
Just so we all understand, very clearly, what is going to happen, starting tomorrow…
Read, once again, what I wrote in a earlier article:
The Maryland Board of Physicians Has a History of Ignoring Due Process – and Getting Sued For It…
Just a few years ago an Alternative Medicine Psychiatrist, Alice Lee-Bloem MD, had a run-in with the Maryland Board of Physicians, and before the case was over the Maryland Board found itself Defending in Federal Court in Baltimore over issues of “Due Process” violations. In short, very much like in the current Mark Geier MD case, someone at the Maryland Board had decided that they, being godlike and all , didn’t need to follow any rules concerning rightful Due Process.
Maryland Attorney Alan Dumoff and Manhattan based Jacques Simons immediately attacked Maryland in federal court. The court ruled, however, that since Maryland had not exhausted, yet, the State mandated Administrative Process that the court would not take jurisdiction – and they forced them to wade through the adminstrative process, which they did.
Unfortunately for the State, the Administrative Law Judge (ALJ) made it clear that the Maryland Board had NO CASE against the doctor and recommended Dismissal. The Maryland Board, like most States, does NOT have to accept the ALJ’s decision, and can make one of its own. But, standing there waiting for the Board’s Decision were Alan Dumoff and Jacques Simons ITCHING to get back into Federal Court, now that the Administrative Process was completed. The Board concurred with the ALJ’s recommendation. You can read about this case here.
But now we have the question once again – Did the Maryland Board learn its lesson, or will it be sued again in Federal Court?
You can bet that the Geier’s legal team will show up tomorrow with razor sharp battle axes, so to speak….
One little note…
Kathleen Seidel’s little band of anonymous supporters organized a campaign to cause as much damage to the Geiers as possible in the shortest possible time. Geier supporters are gathering those communications as evidence of an organized conspiracy.
My advice to Seidel and the others – make this process simple – type up a list of your personal assets and forward a copy to the Geiers. They, the Geiers, will meet with their attorneys. The Geiers will decide which third of your assets they want, their attorneys will decide which third of your assets they want, and you can sell the rest to pay for your defense. Why? You have NO CHANCE of winning in court. You did what you did. The record of your activities has already been copied.
Stay tuned.
Tim Bolen – Consumer Advocate